INTERNATIONAL CONFERENCE ON THE QUESTION OF JERUSALEM “The Question of Jerusalem after 50 years of Occupation and 25 years of the Oslo Accords” Rabat, 26 - 28 June 2018 ___________________________________________________________________________ CHECK AGAINST DELIVERY PLENARY II The Question of Jerusalem in international law and Member States’ obligations International law provisions applicable to the question of Jerusalem Paper presented by Mr. Ziad Abuzayyad Former Minister for Jerusalem Affairs 2 THE LEGAL STATUS OF JERUSALEM UNDER INTERNATIONAL LAW ZIAD ABUZAYYAD INTRODUCTION: Public international law refers to those laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves, as well as the relationships between nation states, and international organizations with natural and juridical persons. The public international law aims to monitor the behavior between states, since where there exists a community of states, the maintaining of law and order becomes essential. The primary forum for the creation of public international law is inter- governmental organizations like United Nations through the codification of customary law. The UN develops, creates and enforces international law on many levels. The UN Charter contains a supremacy clause that makes it the highest authority of international law. The clause states that the UN Charter shall prevail in the event of a conflict between the obligations of the members of the United Nations under the present charter and their obligations under any other international agreement (art.103). The General Assembly and the Security Council are the components of the organization that are most involved in lawmaking and legislative activities. Though the General Assembly lacks formal legislative authority to adopt resolutions that are binding on its members, it is highly active in the making and development of international law. 3 The General Assembly has originated much of the existing international legislation, and some of its resolutions are now accepted as customary in international law, such as the UNIVERSAL DECLARATION OF HUMAN RIGHTS. The resolutions adopted by the General Assembly, albeit formally considered non-binding, have legal character and contribute significantly to the development of international law. The Security Council on the other hand, has the authority to adopt binding decisions and non-compliance with these decisions constitutes a violation of the UN Charter. This presentation will examine the legal status of Jerusalem under the international law represented by the legislative role of the United Nations, and in the light of relevant UNSC, and General Assembly resolutions. Jerusalem: Historical background Founded by the Canaanites around 1800 B.C., occupied by King David eight centuries later, destroyed by the Babylonians in 587 B.C., Jerusalem was then successively occupied by the Persians, the Greeks, the Romans (both pagan and Christians), the Arabs, the Turks and the British. It is unique among the cities of the world because of its association with the three monotheistic religions, which have their Holy Places in it. As a result, it is of a profound religious and spiritual significance to more than 2.4 Billion Christians, 1.8 Billion Muslims and 14.5 Million Jews1. UNGA and Jerusalem 1Cattan, H., (Spring) 1981. Journal of Palestine Studies, Vol. 10(No. 3). 4 The General Assembly resolution 1812 of Nov. 29th, 1947, known as the Partition Resolution, divided historical Palestine into two states: Jewish and Arab, and Jerusalem was given a special status, defined as “Corpus- Separatum”, an independent international entity, governed under special international system and this status did not change since then. The borders of Jerusalem according to this resolution included the Old City of Jerusalem, and its neighborhoods that reached to the east Abu Dies, south to Bethlehem, west to Ein Karem, and north to Shuafat. Despite the outbreak of hostilities in 1948-49 the United Nation made several attempts to establish the International Regime before giving up in 1951 after Israel moved its parliament, the Knesset, to West Jerusalem, and Jordan set up institutions in East Jerusalem. But the UN Resolution 181 remains on the table in the sense that it remains one of the future options in the negotiations on the final status of Jerusalem. Israel's occupation of West Jerusalem since 1948 has not been recognized de jure, although most states recognize Israel's de facto authority over West Jerusalem. The 1949 Israel – Jordan Armistice Agreement endorsed the de facto division of the city but did not affect the legal status of the City3. However, despite the UNGA resolution, during the years 1948-49 the status of Jerusalem was violated with military force and the city became divided by military rule between two states with closed borders. Thisdivision had its official context in the General Armistice Agreement between the Hashemite Kingdom of Jordan and Israel 19494. In between 1948- 1967 Israel tried continuously since its creation in 1948 to violate the international status of Jerusalem. In that period, the Israeli authorities 2City of Jerusalem: Special Regime, pp 146-150, ANNEX A, ANNEX B, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/181(II) 3Fouloy, C. D. D., 2017. Association of Accredited Public Policy Advocates to European Union. [Online] Available at: http://www.aalep.eu/jerusalem-under-international-law 4General Armistice Agreement between the Hashemite Jordan Kingdom and Israel 1949, https://unispal.un.org/DPA/DPR/unispal.nsf/0/F03D55E48F77AB698525643B00608D34 5 established the Israeli Supreme Court in Jerusalem, and on February 1949 the Israeli Knesset convened in the Jewish Agency building in West Jerusalem where the Israeli president gave his presidential oath. The UN AD HOC committee on the Palestinian Question (UNGA 194 (III) progress report of the United Nations Mediator5) was informed about the Israeli measures in Jerusalem such as establishing ministerial bodies inside the borders that were supposed to be part of the “international governance of Jerusalem”, and the UN Ad Hoc Committee addressed the Israeli prime minister with a letter that such acts are in violation of the UN General Assembly resolution. Despite the general armistice agreement, the international community kept the legal status of Jerusalem in accordance with the UN resolution 181, and its legal implications were considered within its context. Israeli measures to integrate West Jerusalem into Israel, and the measures taken by Israel following the occupation of East Jerusalem in the June 1967 war, to assert sovereignty over all Jerusalem, have been repeatedly condemned by the UN and are of no legal effect. Israel is in belligerent occupation of East Jerusalem. And under international law, belligerent occupation cannot confer title. The principle of inadmissibility of acquisition of land by force is stated in UN Resolution 242, Nov. 22nd, 1967 in regard to territories occupied in 1967 war including East Jerusalem. Therefore, prior to 1967 no state moved its embassy to Jerusalem, the status of the Consulate General offices in Jerusalem was considered (suigeneris) meaning without any legal form and they were known back then as representative consulates to the (Corpus Separatum), 9 Consulate General offices were in both East and West Jerusalem, six of them in East Jerusalem, and these offices didn’t recognize sovereignty on both sides. In contrast to the Consulate General offices in Israel, consuls in West Jerusalem didn’t submit their assigning papers to Israeli foreign ministry, or diplomatic assigning papers from the president 5http://undocs.org/A/RES/194%20(III) 6 of the state. They had no official relations with the Israeli government and diplomatic protocol maintained the unrecognizing of Israeli sovereignty over the city. The same attitude was applied in East Jerusalem. Consuls didn’t submit their assigning papers to the Jordanian foreign ministry or the King. They had no official relations with the Jordanian government and diplomatic protocol maintained the unrecognizing status. Consul Generals in Jerusalem were and still are reporting directly to the Ministries of Foreign Affairs in their countries and not to the Embassies in Tel Aviv or Amman. This situation is still valid for all Consulates in Jerusalem including the US Consulate until this moment, in spite of the decision to move the American Embassy from Tel Aviv to Jerusalem. After the Israeli occupation of the Palestinian lands of the West Bank including East Jerusalem, and the Gaza Strip as a result of the June 1967 war, Israel established its authority over these areas as an occupying force, making substantial geographic and demographic changes by force of military occupation. On the 27th June 1967 Israel unilaterally extended its jurisdiction and legal constituency over East Jerusalem, including the Old City of Jerusalem, expanding the municipal borders of the city to include the surrounding neighborhoods of Sur Baher, Qalandia airport, Jabal Al- Mukabber and Shuafat in violation of the UN resolution 181 and 242. And on the 29th June 1967 an Israeli military order was issued dissolving the elected MunicipalCouncil of Arab Jerusalem that was composed of 12 members. All were exempted of their tasks, and the elected Arab Mayor of Jerusalem, Rauhi al Khatib, was expelled to Jordan. UN Ambassador Thalmann's mission report6 confirmed that Palestinian